Monday, 20 December 2021

What is England and Wales?

 

Or, more precisely, what exactly, in a legal sense, is this thing we call England and Wales [1]? This whole blog was prompted by the observation [2] that the old maxim

Cuius est solum, eius est usque ad coelum et ad inferos [3]

might not - or even more curiously might but the draftsman has erred - apply to the actual physical definition of England and Wales.

Before that, however, we need to take a detour to consider the difference between the extent of a law and where it applies. At first brush, these seem to be two ways of saying the same thing - they most certainly are not.

And then we need to work out where England and Wales came from, and only then can we answer the question 'what is it?'

Extent versus application

Unusually - indeed I know of no other state which does this even close to as systematically as the United Kingdom - laws in Britain can have both a jurisdiction extent and a territorial (or even spatial or temporal) application.

A law is said to extend to an entire jurisdiction, so laws can extend to England and Wales (one jurisdiction, consisting of two countries), Scotland (one jurisdiction consisting of one country), Northern Ireland (ditto), Gibraltar (one jurisdiciton consisting of an overseas territory), the Isle of Man (one jurisdiction consisting of a Crown Dependency), or ... you get the idea. Or any admixture of the above.

Lest it cause any confusion, in the above when I say country I really mean, for any purpose whatsoever, 'that part of the United Kingdom called X'. This can become a needlessly thorny issue. I will try hereafter to use the nice, neutral, term 'place' to describe these things.

By default and some enforcement, Acts of Parliament extend to England and Wales, Scotland, and Northern Ireland though they may work in each in different ways [4]. However, most [5] Acts will specify an extent clause, picking and choosing which ones. 

Extent, however, has absolutly nothing to do with where an Act or indeed any law applies. It just means it forms part of the law of that jurisdiction. That jurisdictions have geographic names is simply because one usually follows the other.

Application, on the other hand, is where the law is actually active. The most common manifestation of this - before this was more of an unusual curio, about which we shall come to - after devolution is in the jurisdiction of England and Wales. Laws made by the Welsh Ministers will extend to England and Wales but can only apply in Wales. This applies then mutatis mutandis the other way in areas of devoled competence. This is how Wales and England can share a jurisdiction, but have different public health restrictions, for example. The rules either side of the River Severn extend to all of England and Wales the jurisdiction but only apply in either England or Wales the place.

Application can be narrower than this, for example restricted to sub-part of England and Wales. Application can also be by simple implication, i.e. the law obviously doesn't apply to everywhere it purports to extend. One - esoteric - example of this is the Middlesex Deeds Act 1940 [6]. This is silent about extent, so extends to the whole of the United Kingdom, but clearly only applies to, well, Middlesex. It forms part of the law of Scotland and Northern Ireland, but is utterly inert there.

But, application can also be outwith the country too. The Official Secrets Act 1911 has, in part, a provision that reads
10 (1) This Act shall apply to all acts which are offences under this Act when committed in any part of His Majesty’s dominions, or when committed by British Officers or subjects elsewhere.

but also has no extent clause. In this manner this law applies (at least insofar as it can be enforced) outside of the geographical limits of the jurisdictions to which it has been extended. We can also see here it has been extended to the entire British Empire by (at least) necessary implication [8] [9] [10].

So, how does this all matter to the question of "what is England and Wales?". To answer that, we need to consider just what in law the terms "England" and "Wales" mean. "England and Wales" as the jurisdiction is ephemeral, in comparison. It's just the place where the writ of Her Majesty's High Court of Justice runs, in a manner of speaking.

The Interpretation Act 1978

The schedule of defined words and phrases [11] in this Act provides [12]
“England” means, subject to any alteration of boundaries under Part IV of the Local Government Act 1972, the area consisting of the counties established by section 1 of that Act, Greater London and the Isles of Scilly 
“Wales” means the combined area of the counties which were created by section 20 of the Local Government Act 1972, as originally enacted, but subject to any alteration made under section 73 of that Act (consequential alteration of boundary following alteration of watercourse)

The reference there to the Local Government Act 1972 is interesting and somewhat key. But the astute may also notice that these definitions define the terms England and Wales (but not England and Wales) by reference to the areas of local councils. Not even true geography. 

This Act, which reformed local government, also effected a pair of important definitional changes. To understand that, we need to look at a few related provisions. All of these are as enacted, for a variety of reasons, mostly Welsh local government reorganisations, the provisions as in force now hide this somewhat. First, both sections 1 and 20 provided

1(12) In this section “England” does not include the administrative county of Monmouthshire or the county borough of Newport.

20(7) In this section “Wales” includes the administrative county of Monmouthshire and the county borough of Newport.

Which if you read them carefully effects something that had been unclear in the extreme since at least the 16th century: just where was Monmouthshire [13]? 

Both these provisions, however, affect the application of laws only. We now need to consider just where England and Wales the jurisdiction came from.

The Laws in Wales Acts

Since the Laws in Wales Acts 1535 and 1542 [14], Wales had formed part of one jurisdiction united with England, viz.

That his [15] said Country or Dominion of Wales shall be, stand and continue for ever from henceforth incorporated, united and annexed to and with this his Realm of England.

Before this, since Wales was conquered by King Edward, it remained a separate jurisdiction (as we would now call this - that term had yet to be really invented!) and had an entirely separate system of laws and courts and so on. 

And thus the jurisdiction of England was created (the and Wales will need to wait nearly five further centuries).

But what of the application of laws? This remained gloriously ambiguous for another two centuries.

In 1746, annexed to the back end of a statute about the window tax [16] and now known as the Wales and Berwick Act 1746 [17] was the provision

III. And it is hereby further declared and enacted by the authority aforesaid, That in all cases where the Kingdom of England, or that part of Great Britain called England, hath been or shall be mentioned in any Act of Parliament, the same has been and shall from henceforth be deemed and taken to comprehend and include the dominion of Wales, and town of Berwick-upon-Tweed.

By this enactment, any residual difference in the application of laws between Wales and England was eliminated and thus the last vestige of separate Welsh laws was ended. For now. However, it is not abundently clear this provision was ever actually necessary in practice - but thankfully nothing turns on this point (which did animate Blackstone, however).

The Curious Case of Monmouthshire

So, Monmouthshire. It was never clear prior to the 1746 Act, but after it it became functionally irrelevant if Monmouth was part of England or Wales. This then begat curious application clauses in things like the Welsh Church Act 1914 [18] like
[...] the Church of England, so far as it extends to and exists in Wales and Monmouthshire (in this Act referred to as the Church in Wales), shall cease to be established by law [...]

This phrasing both works, because the Wales and Berwick Act 1746 united Wales to England but didn't abolish it in totality, and is also necessary just in case the pre-1746 position was that Wales was not united with Monmouthshire.

This is also clearly a clause defining the application of a law. So, even before England gained its and Wales it was clear that the jurisdiction could have laws that only applied to bits of it (this of course has always been clear, this being merely a stark example of it) [19].

The effect, therefore, of that pair of sub-sections in the 1972 Act was to finally remedy this anomaly.

The and Wales

So, we have a jurisdiction called England, and a rule that said any law purporting to apply to England also applies to Wales (but not, strictly, the reverse, and Monmouth was safe because it was either one or the other, even if no one knew which). When did it becomes England and Wales?
Section 3 of the Wales and Berwick Act 1746 (which provides that references in Acts of Parliament to England include references to Wales and Berwick) shall have effect in relation to any Act passed after this Act as if the words " dominion of Wales and " were omitted.

Thus provided the Welsh Language Act 1967 [20]. Now, to my mind this is ambiguous as to whether it just undid the 'application' bit or also renamed the jurisdiction too. But I think it is a necessary implication of it that the jurisdiction now became England and Wales and anything which purported to apply to only England would not so apply to Wales (but would form part of that conjoined jurisdiction, still).

Even if one can quibble about precisely what happend when and how, this is now the status quo. So, this odd historical journey completed, we can now consider exactly what is England and Wales.

Low-tide

The boundaries of local authorities, with some esoteric (Bristol) exceptions, stop at the low water mark. Or, put another way, local authorities don't have powers over the open sea. As one will notice in the definitions given in the 1972 Act above, this means that right now England and Wales as England and Wales the places laws apply stop at the low-water mark.

This practice mirrors the implication of the Territorial Waters Jurisdiction Act 1878 [21], which extended the criminal law in England (and elsewhere but lets focus on it) to the sea around it. The corollary of that is that the civil law didn't automatically so apply [22]. 

So, England and Wales as geographic entities to which laws can apply, by default, stop at the water's edge. So, that's part of our answer to 'what is England and Wales'.

Ad inferos

So, downwards? This one is easy. No special words are required to regulate mines or tunnels or whatever. So I think it follows without much fanfare that a law which applies to England or to Wales applies to the centre of the Earth beneath it.

Ad coelum

Now, this is the vexing one. And indeed, the situation that prompted this whole discussion (after this we need to briefly finish off by considering the continental shelf, which is thankfully trivial, and we are done).

My naive assumption would be that like down towards Tartarus, England and Wales also encompass everything out to somewhere high in the atmosphere - the modern day equivalent of the Heavens. I think it is obvious that the old literal definition needs to be amended to consider the existence of Outer Space, and thankfully it probably makes everything better to work that way too!

But, in laws every now and then one encounters curious provisions like this [23]
(3) These Regulations extend to England and Wales, and apply—
(a) in England;
(b) in English airspace to a person who is on board an aircraft which took off from, or is to land at, a place in England;
(c) in the English territorial sea to a person who is on board a vessel which is not an excluded vessel.

 And the same regulation then defines 'English airspace' as [24]

“English airspace” means the airspace above England or above the English territorial sea;

Since we know that the territorial sea is not part of England (the place), this opens up a question: is English airspace not part of England either? (Everything here applies mutatis mutandis to Wales).

This single provision also very nicely demonstrates the difference between extent and application. The regulations extend to the jurisdiction of England and Wales (united by the Laws in Wales Acts and renamed by implication by the Welsh Language Act), apply only to a subset of the two geographical entities that comprise that jurisdiction (viz. just England) but also apply to (supposedly) two places outside those geographical entities.

I remain totally on the fence whether (3)(b) is necessary, but I think the discussion of nuclear sites below possibly holds the key. If it is, the doctrine when applied to England and Wales should be recast as

Cuius est solum, eius est usque ad inferos

(which incidentally says nothing about the sea, so it nicely captures the concept that England and Wales stop at the low-water mark for free!). If not, (3)(b) is otiose and should never have been included.

I have tried and essentially failed to use civil aviation to answer this question, to limited avail. However, Rich Greenhill found me a slightly older (by about two years) reference in an actual Act, viz. this is the new section 16C of the Nuclear Installation Act 1965 [25]

(9) In this section—

(a) a reference to a part of the United Kingdom is a reference to—

(i) England and Wales,

[...]

(b) a reference to England and Wales includes a reference to—

(i) areas within the territorial limits of the United Kingdom, other than Scotland or Northern Ireland or areas adjacent to Scotland or Northern Ireland, and

(ii) the relevant maritime zone of the United Kingdom, other than the relevant maritime zone adjacent to Scotland or Northern Ireland, and the sea bed and subsoil within, and the airspace above, that part of that zone;

The drafting is curious because it's written backwards, in that England and Wales' extra bit (watery or airy) is everything that is neither Scotland nor Northern Ireland's extra bits. But it is the same idea, that a reference to the United Kingdom would not be apt to capture the territorial sea (fine, not controversial) or the air above it (the sea, that is). Seabed and subsoil will be dealt with in the final bit below, it's actually very anodyne and clear.

This really does not imply that Parliamentary Counsel did not believe that airspace falls within England (or Wales). Which is probably more correct. It would be quite bizaree if an area of land defined by reference to the boundaries of local authorities descended to the centre of the Earth but not to the Heavens. And as Greenhill put it "where would it leave flying cars?"

And thus we may have our answer: the place England and Wales is the ground, everything built on it, and everything down to the centre of the Earth, and everything up to the Heavens, within the borders of any English or Welsh local authority. So, then, cuius est solum, eius est usque ad coelum et ad inferos indeed.

The Continental Shelf

This is simple, obviously this is not part of England or Wales. But it is a place the United Kingdom can exercise some jurisdiction, albeit with some limits. Consequently an application clause is necessary apply things here - and as we see in the previous part it may be necessary to be clear about seabed and subsoil when doing so.

Conclusion

England and Wales is two things at the same time: an ephemeral jurisdiction to which laws can extend, and two chunks of land to which laws can apply. The latter, however, perhaps surprisingly not including the territorial waters around the chunks of land, but, more conventionally, the area above and beneath them.

This poses no issues in practice, of course, because as we saw right at the beginning, where a law extends only matter for which courts enforce. Where a law applies need not bear much resemblance to its extent at all.

Colophon

I am indebted to whichever drafting lawyer put that regulation in the face covering regulations, without which I would never have thought to consider this. 

As a caveat, while everything else is pretty clear, I have both been a bit radical on delinating between extent and application than may be normal (but remember before the 1960s it so barely mattered no one was too clear or careful); as for my conclusions on airspace, I submit the drafting lawyer at the DHSC was simply wrong. [26]

Corrigenda

A briefly published but not advertised draft of this contained a fatal misunderstanding at the end, this has been removed and everything else adjusted.

[1] Which was once simply called England, but we will jump to the here and now.
[2] With an hat-tip to Rich Greenhill!
[3] "Whoever owns the soil owns everything from the Heavens to Hell", i.e. owners of estates of land in fee simple absolute own everything from the centre of the Earth to... well they didn't quite know about Outer Space when they formulated this one!
[4] A trivial example is substituting references to the High Court to the Court of Session in Scotland.
[5] But not all, and there are some categories of Acts, like the appropriation acts, that by convention always use the default rule.
[6] 3 & 4 Geo. VI. cap. 34; still seemingly in force though mostly spent I would aver.
[7] 1 & 2 Geo. V. cap. 28; this Act still provides for the basis of the offence of spying in the United Kingdom, inter alia.
[8] Orders-in-Council were and are used to provide for this more explicitly too by disabling the Imperial Act if a territory enacted its own equivalent law, see, e.g. The Official Secrets (Jersey) Order in Council, 1952 (S.I. 1952 No. 1034)
[9] Before devolution, the two terms were sometimes used with a bit less care and precision, but context usually makes clear what is going on where.
[10] A slight common law aside here: the common law offence of murder also applies to any British Citizen anywhere in the world. This idea that a law can apply to someone in a place outside the jurisdiction is not all that unusual. The most extreme examples are true extraterritoriality, where the actions of foreigners living abroad purport to be criminalised. But as we see here, extraterritoriality is a question of application, not extent (and it is a surprisingly common slip to elide these things).
[12] Curiously, no definition of Scotland is provided, indeed a statutory one doesn't seem to exist at all, and later the "United Kingdom" is defined as "Great Britain and Northern Ireland" without bothering to define either of those either.
[13] I declare an interest here: I am within the historical borders of Monmouthshire as I write this.
[14] They were both passed before March 25th in their respective years, so people who don't understand calendars will add one to these dates; those people are wrong. The regnal citations, which are unambiguous, are 27 Hen. VIII. cap. 26 and 34 & 35 Hen. VIII. cap. 26. Do love a good Henrician statute.
[15] I.e. Henry VIII.
[16] Yes, really. I'm wholly serious, the long title of the Act is 
An Act to enforce the execution of an Act of this session of Parliament, for granting to His Majesty several rates and duties upon houses, windows, or lights.
There is also an unclear provision about Quakers in the Act as well, and it defies me to work out what it does.
[17]  20 Geo. II. cap. 42; we will not discuss Berwick-upon-Tweed here, for the simple reason it defies mortal explanation.
[18] 4 & 5 Geo. V. cap. 91
[19] The situation of the Border Parishes I am entirely ignoring since nothing turns on it.
[22] This leads to my curious question: would me sat in a dinghy below the low water mark with a megaphone be able to slander someone with impunity?
[23] The Health Protection (Coronavirus, Wearing of Face Coverings) (England) Regulations 2021 (S.I. 2021 No. 1340), reg. 1; there is an irony that it was an emergency public health law that prompted this entire blog, I think.
[24] It also defines English territorial waters as the territorial waters adjacent to England, but since we have established that England does not qua England encompass those, that makes sense.
[25] 1965 cap. 57
[26] My theory, since I was seduced by this trap too, is that they read the 1972 Act, concluded local authorities jurisdiction doesn't extend to airspace regulation, and therefore the area of a local authority does not include airspace. This seems very tenuous at best.

Sunday, 17 October 2021

The Lord High Treasurer of the United Kingdom

 

Conventional wisdom, Wikipedia, and just about every reference book, would have you believe that the Great Office of State known as the Lord High Treasurer of the United Kingdom [1] is in commission, and that Boris is First Lord Commissioner thereof.

Conventional wisdom, Wikipedia, and far too many reference books are wrong. The office of Lord High Treasurer of the United Kingdom is, and always has been since its creation, vacant.

But first, some history.

The Lord High Treasurer of England

The first and third (probably in both cases) Lord High Treasurer of England was Nigel [2], the then Lord Bishop of Ely, between both 1126-1133 and 1154-1158. He seems to have also been some sort of tresorial equivalent in Normandy too. Whether or not this office was that of Lord High Treasurer, or simply Treasurer, remains unclear - a lack of clarity which may indeed descend to the present day.

Over time this office amassed considerable power, with a subordinate, the Under-Treasurer and Chancellor of the Exchequer [3], and ranking as a Great Office of State behind the Lord High Chancellor [4]. Initially they formed a vaguely co-equal part of what became the Court of the Exchequer: after all, if you owed money to the King, and couldn't pay because someone else owed you money then perhaps it was worth the King settling that dispute?

In time the Court of Exchequer, headed by the Chief Baron [5] and staffed by the Barons thereof, became a fully-fledged court in Westminster Hall, and the Lord High Treasurer and the Chancellor [6] ran the money side of things. Those interested in this should look into the wonderfully bizarre world of the Pipe Office, you will not be disappointed.

However, as noted in Anson [7] the Lord High Treasurership was actually always conferred as a pair of offices: the Lord High one by granting a wand of office [8] and the office of Treasurer of the Exchequer by Letters Patent. And it is to that pairing that we shall return.

Letters Patent in the Modern Day


These were the Letters Patent that formally, inter alia, appointed Boris Johnson as First Lord. But there is a key sentence which kicked this whole journey off and let to my discovery.

Mid-way down, one will notice that the Patent says 
from time to time during the vacancy of the Office of Lord High Treasurer of the United Kingdom

and a bit later references 

Commissioners of Our Treasury of the United Kingdom

Alone, these two phrases would say nothing. But we contrast these with those from the Letters Patent appointing Lords Commissioners of the Admiralty [9] which say

Commissioners for executing the Office of Lord High Admiral [my emphasis]

Already we have an hint of a difference.

Treatment in Statutes

Before we dive into the legislation, and find that there indeed is a difference, a quick look at a few statutes buttresses this idea of a difference. Firstly, the Encouragement of Fisheries Act 1775 [10] at section 19 has

 impowered by the lord high admiral or any other person whatsoever

at a time when the office of Lord High Admiral was undoubtedly in commission, but at section 35 has

high treasurer of Great Britain, or the commissioners of the treasury for the time being.

A similar formulation is found in the Stamp Act 1765 [11]. Keeping the theme going the Act 20 Vict. cap. 1 has (for the Lord High Admiral)

Commissioners for executing the Office of Lord High Admiral

and so does the Act 13 Geo. II. cap. 17.

So great care was being taken both before an after the Union with Ireland to refer to the Commissioners for the Treasury and the Commissioners for executing the Office of  Lord High Admiral in different ways.

Mergers and Answers

The treasuries of England and Scotland had been merged at their union to form the Lord High Treasurer of Great Britain, an office which was held by people, and always concurrently with that of Treasurer. But, as noted in Sainty [12] whenever the office was held in commission the former office was left vacant and the latter office was put into a commission. Anson [vide infra] dodged the question of what would happen if different individuals were appointed as Lord High Treasurer and Treasurer and therefore so will I.

At the Union with Ireland, the two treasuries remained separate until 1816, when Parliament provided (by a provision still in force) for their merger, viz. [13]

The offices of lord high treasurer of Great Britain and lord high treasurer of Ireland shall be united into one office, and the person holding the same shall be called lord high treasurer of the United Kingdom of Great Britain and Ireland; and whenever there shall not be any such lord high treasurer, it shall and may be lawful for his Majesty by letters patent under the great seal of Great Britain to appoint commissioners for executing the offices of treasurer of the Exchequer of Great Britain and lord high treasurer of Ireland; and such commissioners shall be called commissioners of his Majesty’s Treasury of the United Kingdom of Great Britain and Ireland [much irrelevant text omitted]

Which provides a fully contained answer to the whole conundrum: Her Majesty has two options, put the office of Lord High Treasurer into the hands of a single person or put the offices of both Treasurer (and Lord High Treasurer of Ireland) into commission. 

Since the office has been in commission ever since 1816, therefore there has never been a Lord High Treasurer of the United Kingdom. More importantly, the office is not and never has been in commission: it is, and always has been, vacant.

Which, as it happens, the Letters Patent themselves recall.

Conclusion

Wikipedia, and many other sources are wrong. There is no commission to exercise the office of Lord High Treasurer, it is simply vacant. There is a body, the Lords Commissioners of Her Majesty's Treasury, but they are exercising the office of Treasurer of the Exchequer (and possibly, oddly, Lord High Treasurer of Ireland).

Colophon

I am grateful to Rich Greenhill and Bluemantle Pursuivant-of-Arms, without who's accidental questions I would never have discovered this, and to Simon Harley for some Admiralty patents to confirm some things.
 
[1] For clarity, any reference hereafter to the Lord High Treasurer unqualified means this one, not, as we shall see, the other ones.
[2] Just Nigel, really!
[3] Familiar title, that...
[4] Which office, despite all attempts otherwise, continues to exist and is very much not vacant
[5] This is probably the cause of the bizarre rule that when the office of Chancellor of the Exchequer is vacant the Lord Chief Justice serves ad interim. The last to do so was the Lord Denman in November and December 1834. This ensured that the nominally senior Chancellorship was still occupied by someone senior to the Chief Baron.
[6] Chancellor without qualification means Chancellor of the Exchequer; Treasurer without qualification will mean Treasurer of the Exchequer.
[7] Laws and Customs of the Constitution, part II, the Crown, Sir William Anson, Bt., D.C.L. p. 162 (thanks to Greenhill for informing me of this)
[8] Not dissimilar, I think, to the Lord High Steward, et al.
[9] Simon Harley, private communication.
[10] 15 Geo. III. cap. 31
[11] 5 Geo. III. cap 12
[12] Office-Holders in Modern Britain: Volume 1, Treasury Officials 1660-1870

Tuesday, 4 May 2021

Concluding a Treaty - I. Instruments of Ratification or Denunciation


States make agreements with each other every day. These range from the almost bafflingly mundane [1] to treaties which have reshaped the global order [2]. But how does this work in practice?

Well, as with everything it is mostly simple with lots of exceptions and corner cases. The fundamental idea is that states [3][4] make agreements and that these then bind them [5]. In a change from my usual style, we will start by considering a simple - and quite boring - example and then move on to the spectacular display of the British Constitution moment!

Effective on Signature

The simplest examples of these are agreements [6] which, when signed, take effect immediately. These are comparatively rare in the modern world, and usually restricted to very technical or low impact things. A very recent example in the UK would be the Agreement between the Government of the United States of America and the Government of the United Kingdom of Great Britain and Northern Ireland regarding Mutual Assistance in Customs Matters between their Customs Administrations [7]. This agreement provides (in part) at Article 14

ARTICLE 14

Entry into Force and Termination

1. This Agreement shall enter into force on the first day of the month following signature. 

[...]

There does not appear to be, technically, any great need for any treaty to be ratified, but the approach of binding a state on signature has two obvious downsides. The first is that it does not provide a window (however long that might be) for the state in question to implement the agreement in domestic law [8] . The second, which is probably the more significant in the modern political world is that it does not provide for any form of Parliamentary  (or equivalent) approval.

A similar form of agreement to this is an agreement by an exchange of notes. Here, two (or more) states exchange formal letters containing identical text of some agreement, and by that exchange become bound. This is often used for highly technical changes to existing agreements, or to correct simple errors. One example is the Exchange of Notes to amend the Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the United States of America for the Sharing of Visa, Immigration, and Nationality Information, done at Queenstown on 18 April 2013, as amended by an Exchange of Notes on 28 and 29 September 2016 [9]. 

Despite the highly prolix name, this is actually worth a quick look by the curious because these letters are still written in the highly formal diplomatic style, e.g. the UK's note ends with

The Foreign, Commonwealth and Development Office avails itself of the opportunity to renew to the Embassy of the United States of America the assurances of its highest consideration.

This lack of any confirmatory process to finalise the agreement is what leads us to ratification

Ratification of Treaties

This is, at its simplest, a formal declaration by a state that it now accepts and is bound by some agreement it has signed. The Vienna Convention on the Law of Treaties requires that even before this signatories not act contrary to the treaty thusly 
Article 18 
Obligation not to defeat the object and purpose of a treaty prior to its entry into force  
A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when: 
(a) it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty; or 
(b) it has expressed its consent to be bound by the treaty, pending the entry into force of the treaty and provided that such entry into force is not unduly delayed. 

That said the treaty is not in force, nor is it truly 'complete' until ratified [10]. One reason, mentioned above, for wanting to do this is to involve the legislature. In the United Kingdom, this takes the form of section 20 of the Constitutional Reform and Governance Act 2010 [11] [12]

20. Treaties to be laid before Parliament before ratification

(1) Subject to what follows, a treaty is not to be ratified unless—

(a) a Minister of the Crown has laid before Parliament a copy of the treaty,

(b) the treaty has been published in a way that a Minister of the Crown thinks appropriate, and

(c) period A has expired without either House having resolved, within period A, that the treaty should not be ratified.

(2) Period A is the period of 21 sitting days beginning with the first sitting day after the date on which the requirement in subsection (1)(a) is met.

  [various further provisions omitted]
 This is the codification of the 'Ponsonby Rule'. Prior to this Act, there was no domestic requirement to do pretty well anything to ratify a treaty. It was purely a matter for the executive. Although not ever unique to the United Kingdom, this had become somewhat anomalous by the 21st century. The said 'Rule' was a convention that treaties were laid before Parliament for twenty-one days before being ratified [13]. 

That's the domestic legal bit over and done with. What does this look like in practice? Well, as usual there is more than one way to do this, because it wouldn't be diplomacy, or the British Constitution, if there was not.

Ratification by Her Majesty the Queen

Certain treaties, usually but not always those of the most significant nature, are not concluded between 'governments' or 'states' but this mysterious entity - a High Contracting Party.

For example we see at the beginning of the Treaty of Nice [14] a list of the parties thereto
HIS MAJESTY THE KING OF THE BELGIANS,
HER MAJESTY THE QUEEN OF DENMARK,
THE PRESIDENT OF THE FEDERAL REPUBLIC OF GERMANY,
THE PRESIDENT OF THE HELLENIC REPUBLIC,
HIS MAJESTY THE KING OF SPAIN,
THE PRESIDENT OF THE FRENCH REPUBLIC,
THE PRESIDENT OF IRELAND,
THE PRESIDENT OF THE ITALIAN REPUBLIC,
HIS ROYAL HIGHNESS THE GRAND DUKE OF LUXEMBOURG,
HER MAJESTY THE QUEEN OF THE NETHERLANDS,
THE FEDERAL PRESIDENT OF THE REPUBLIC OF AUSTRIA,
THE PRESIDENT OF THE PORTUGUESE REPUBLIC,
THE PRESIDENT OF THE REPUBLIC OF FINLAND,
HIS MAJESTY THE KING OF SWEDEN,
HER MAJESTY THE QUEEN OF THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND

(capitals as original), which rather than being a list of countries or governments is a list of Heads of State - in years ago a list of sovereigns [15]. Later we find at Article 12

This Treaty shall be ratified by the High Contracting Parties in accordance with their respective constitutional requirements. The instruments of ratification shall be deposited with the Government of the Italian Republic.

So what does such a ratification look like? Well, this is the United Kingdom so it is quite spectacular [16]

Elizabeth the Second, by the Grace of God of the United Kingdom of Great Britain and Northern Ireland and of Her other Realms and Territories Queen, Head of the Commonwealth, Defender of the Faith, &c., &c., &c., To all and singular whom these Presents shall come, Greeting!

WHEREAS, a Protocol No. 15 amending the Convention on the Protection of Human Rights and Fundamental Freedoms [17] was signed at Strasbourg on the Twenty-fourth day of June in the Year of Our Lord Two thousand and Thirteen by the Plenipotentiaries of Us in respect of Our United Kingdom of Great Britain and Northern Ireland and the Plenipotentiaries of the Heads of the other member states of the Council of Europe, duly and respectively authorised for that purpose;

Now there We, having seen and considered the Protocol aforesaid, have approved, accepted and confirmed the same in all and every one of its Articles and Clauses, as We do by these Presents approve, accept, confirm and ratify it, for Ourselves, our Heirs and Successors; engaging and promising upon Our Royal Word that We will sincerely and faithfully perform and observe all and singular the things which are contained and expressed in the Protocol aforesaid, and that We willl never suffer the same to be violated by any one, or transgressed in any manner, as far as it lies in Our power. For the greater testimony and validity of all which, We have caused Our Great Seal to be affixed to these Presents, which We have signed with Our Royal Hand.

GIVEN at Our Court of Saint James's, the nineteenth day of March in the Year of Our Lord Two thousand and Fifteen and in the Sixty-fourth Year of Our Reign.

L.S. [18]

First off - diplomatic et ceteras - don't see those that often anymore! This actually (see blogs passim) does look rather like Letters Patent, and I suppose in a way it is, albeit one for foreign not domestic consumption. 

having seen and considered the Protocol aforesaid

I think this harks back to an earlier time, where ratification was more used a tool for sovereigns to check and approve what their plenipotentaries were up to, rather than its modern purposes. I also notice the claim to ratify not just for now but for future Kings too. Finally, and this perhaps is the key big, is the promise, 

We willl never suffer the same to be violated by any one, or transgressed in any manner, as far as it lies in Our power

or, in other words pacta sunt servanda. One also notes that unlike almost all domestic Letters Patent, this is signed by the Queen. 

This is the system used for the most significant of treaties, which require the greatest formality. What about, then, the 'lesser' ones [19].

Ratification by the Secretary of State

When a treaty is not between the somewhat mysterious High Contracting Parties it is concluded between governments or states (which terms seem to be used almost interchangeably [20]). These are not ratified by the Queen but instead by the Secretary of State for Foreign, Commonwealth, and Development Affairs. 
WHEREAS the Marrakesh Treaty to Faciliate Access to Published Works for Persons Who are Blind, Visually Impaired, or Otherwise Print Disabled [21] was adopted by the Diplomatic Conference to Conclude a Treaty to Facilitate Access to Published Works by Visually Impaired Persons and Persons with Print Disabilities on 27 June 2013 and the United Kingdom of Great Britain and Northern Ireland became a signatory to that Treaty on 28 June 2013;

AND WHEREAS paragraph (b) or Article 19 provides that each other eligible party referred to in Article 15 may become party to the said Treaty following the expiration of three months from the date on which it has deposited its instrument of ratification or accession with the Director General of the World Intellectual Property Organisation;

AND WHEREAS the procedures necessary to this end have been completed by the United Kingdom of Great Britain and Northern Ireland;

NOW THEREFORE the Government of the United Kingdom of Great Britain and Northern Ireland, having considered the aforementioned Treaty, hereby confirms and ratifies the same in respect of:
     The United Kingdom of Great Britain and Northern Ireland
     The Bailiwick of Guernsey
     The Bailiwick of Jersey
     Gibraltar
     The Isle of Man

and undertakes faithfully to perform and carry out all the stipulations therein contained.

IN WITNESS WHEREOF this Instrument of Ratification is signed and sealed by Her Majesty's Principal Secretary of State for Foreign, Commonwealth, and Development Affairs.

Done at London on the 24th day of September Two thousand and Twenty.

Dominic Raab

L.S.

This has a very different structure indeed. It begins with some recitals, but in more detail that the ratification by Her Majesty, including the conditions necessary for it to come into force. 

We then see a territorial extent. For the vast majority of countries this is not necessary. For the United Kingdom (and, in particular France and the Netherlands, but there are others too), however, it is. The UK has series of territories, comprising the British Overseas Territories and the three Crown Dependencies for which it is responsible in international law, but which are not [22] part of the UK. It is now settled British practice that treaties only apply to these territories if the UK explicitly says it does. Here we some, but not all, listed. Whether a territory does have a treaty extended to it depends on whether it actually wants it to be extended, which is another bit of democracy in this whole process that ratification allows.

Some treaties within them actually contain more expansive extent clauses, but the UK maintains a practice that it can unilaterally make these declarations even if the treaty is silent. Everyone in the world seems content to go along with this, so it works.

The seal attached to this would not be the Great Seal but instead the Secretary of State's seal. The photo of the EU Withdrawal Agreement in the Annexe (which is also discussed below) is clearer I think.

So that's how signed treaties are perfected. What about a treaty - perhaps a multilateral convention - that the UK has not signed but now wishes to join?

Accession by Her Majesty

When a treaty is no longer open for signature it may provide for other states to nontheless sign up. This process is called accession. In some cases, there is little difference to the two processes. In others, whereas ratification may be an automatic right of a signatory - those negotiating have total freedom to decide who is allowed to sign - accession may come with conditions [23].

Either way, an instrument of accession must be deposited. This might be an unilateral act if there are no conditions, or it may be after those conditions are satisfied. When Her Majesty does this, it looks a bit like this

Elizabeth the Second, by the Grace of God of the United Kingdom of Great Britain and Northern Ireland and of Her other Realms and Territories Queen, Head of the Commonwealth, Defender of the Faith, &c., &c., &c., To all and singular whom these Presents shall come, Greeting!

WHEREAS, a Second Protocol [24] to the Hague Convention of 1954 [25] for the Protection of Cultural Property in the Event of Armed Conflict 1999 was done at The Hague on the Twenty-sixth day of Match in the Year of Our Lord One thousand Nine hundred and ninety-nine.

Now there We, having seen and considered the Second Protocol aforesaid, have approved, accepted and confirmed the same in all and every one of its Articles and Clauses, as We do by these Presents approve, accept, confirm and accede it, for Ourselves, our Heirs and Successors; engaging and promising upon Our Royal Word that We will sincerely and faithfully perform and observe all and singular the things which are contained and expressed in the Second Protocol aforesaid, and that We willl never suffer the same to be violated by any one, or transgressed in any manner, as far as it lies in Our power. For the greater testimony and validity of all which, We have caused Our Great Seal to be affixed to these Presents, which We have signed with Our Royal Hand.

GIVEN at Our Court of Saint James's, the 31st day of July in the Year of Our Lord Two thousand and Seventeen and in the Sixty-sixth Year of Our Reign.

L.S.

This looks, aside from some words being changed, all but identical to ratification. And it is, because from the stand point of the law - domestic and international - there is not much difference at all.

Now we have to move on to something a little less florid (an accession by the Secretary of State just changes the words from ratify to accede so we can skip it).

Acceptance

Acceptance of a treaty is confusingly used in two overlapping ways. Some states use it for all - or essentially all - ratifications and accessions. Others, like the UK, use it for a very simple form of ratification which consists of just notifying a depositary that the UK is ok with something.

A simple example of this was the accession of North Macedonia to NATO, where the the protocol in question simply required the parties to go 'ok' - albeit diplomatically. Expressed by the Secretary of State thusly

WHEREAS the Protocol to the North Atlantic Treaty [26] on the Accession of the Republic of North Macedonia [27] was signed at Brussels on 6 February 2019, by the Parties to the North Atlantic Treaty;

AND WHEREAS Article II of the said Protocol provides that each of the Parties to the North Atlantic Treaty shall give notification of their acceptance to the Government of the United States of America;

NOW THEREFORE the undersigned, Her Majesty's Principal Secretary of State for Foreign and Commonwealth Affairs, hereby notifies the Government of the United States of America of the acceptance by the Government of the United Kingdom of Great Britain and Northern Ireland of the Protocol aforesaid.

Done at London the SIXTEENTH day of OCTOBER, Two thousand and nineteen.

Dominic Raab

L.S.

Those dates in capitals are as original. Irks me too, don't worry. Nice and simple, it is sort of a minature, cut down version of a ratification by the Secretary of State. Which does make sense since that is how the UK perceives this: it is simply notifying the United States, who are depository of the treaty (more on them later, that term has come up a few times now) that the UK agrees to North Macedonia joining.

The EU Withdrawal Agreement

This is a bit of an odd one [28]. Let's see the text
WHEREAS the Agreement on the Withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community was signed at Brussels and London on 24 January 2020;

AND WHEREAS Article 185 of the said Agreement provides that this Agreement shall enter into force on one of the following dates, whichever is the earliest:
(a) the day following the end of the period provided for in Article 50(3) Treaty on European Union, as extended by the European Council in agreement with the United Kingdom, provided that, prior to that date, the depositary of this Agreement has received the written notifications by the Union and the United Kingdom regarding the completion of the necessary internal procedures;
(b) the first day of the month following the receipt by the depositary of this Agreement of the last of the written notifications referred to in point (a).
AND WHEREAS the procedures necessary to this end have been completed by the United Kingdom of Great Britain and Northern Ireland and by the territories for which it is internationally responsible; 
NOW THEREFORE the Government of the United Kingdom of Great Britain and Northern Ireland, having considered the aforementioned Agreement, hereby notifies in accordance with Article 185 thereof completion of the necessary internal procedures for the purpose of entry into force of this Agreement and undertakes to faithfully perfom and carry out all the stipulations therein contained. 
IN WITNESS WHEREOF this Instrument is signed and sealed by Her Mjaesty's Principal Secretary of State for Foreign and Commonwealth Affairs. 
Done at London the TWENTY-NINTH day of JANUARY, Two thousand and twenty.

Dominic Raab

L.S.

This to me feels a bit like a conflation of an acceptance and a ratification, having elements of both. The key bit is that it is specifically notifying not a consent to be bound but the completion of necessary internal procedures. Which is one facet of the purpose behind ratification we noted earlier. This may - though I speak without authority here - be simply due to the anomalous nature of an exiting member of a supranational union negotiating an agreement with the union itself. 

Either way, for such a key international treaty in the modern political life of the United Kingdom, it is worth paying it some attention.  

It is also worth noting this line

and by the territories for which it is internationally responsible

The EU treaties applied - somewhat unusually in modern times - to all the Overseas Territories and Crown Dependencies [29]. This is therefore actually a statement that the United Kingdom is disapplying its normal practice and explicitly stating this notification is for it and all the BOTs and Crown Dependencies. [30]

But sometimes a state wishes instead to end its treaty obligations. This is obviously a somewhat fraut process at times, but sometimes it can be rather simple.

Denunciations

Article 15 of the London Fisheries Convention [31] provides that,
The present Convention shall be of unlimited duration. However at any time after the expiration of a period of twenty years from the initial entry into force of the present Convention, any Contracting Party may denounce the Convention by giving two years' notice in writing to the Government of the United Kingdom of Great Britain and Northern Ireland. The latter shall notify the denunciation to the Contracting Parties.

On 3rd July 2018, Boris Johnson - the then Secretary of State - did just this. By, it seems, writing to one of his own Civil Servants.

Dear Mr Harrison

I refer to the Fisheries Convention, done at London on 9 March 1964, and which the United Kingdom of Great Britain and Northern Ireland ratified on 11 September 1964.

In accordance with the provisions of Article 15 of the Convention, I hereby give notice of the denunciation of this Convention by the United Kingdom of Great Britain and Northern Ireland to take effect 2 years from the date of this letter or on the date on which the United Kingdom ceases to be a Member State of the European Union, whichever is the later date.

I should be grateful if you will kindly notify the Contracting Parties of the UK's denunciation.

Yours Sincerely

Boris Johnson

L.S. THE RT HON BORIS JOHNSON MP

This actually shows the role of the depositary very clearly. They are the conduit through which the ratification and - if necessary - denunciation process flows. Even if the state which is the depositary is the one doing the denouncing [32] .

That letter suffices to trigger the process. There does not seem to be a formal serious document which does so. In a way, this may be unsurprising, states probably don't want to parade about their cessation of treaty obligations. 

That concludes part one of this pair of blogs. In part two, which is actually almost finished so hopefully a short wait, we will look at two things: reservations and declarations, and the other side of the coin entirely, viz.what do depositaries do.

Annexe

These are the images corresponding to the things I have OCRed and fixed above




Colophon

Back to writing it seems. Did find the last six months or so to be an eternal curse of writers block, but there we go. Usual comment applies, please let me know about any errors or omissions, and I'll gladly correct or clarify.

I am indebted to the little known UK Treaties Online system the FCDO run, without which this blog would be very light on citations. The instruments of ratification themselves, etc, came from an FOI request.


[1] Literally every tax treaty ever signed ever is baffling. Even if  I did benefit as a result of the Convention between the Government of the United States of America and the Government of the United Kingdom of Great Britain and Northern Ireland for the avoidance of Double Taxation and the prevention of Fiscal Evasion with respect to Taxes on Income and Capital Gains, aka the USA-UK Tax Treaty
[2] The Treaty of Versailles springs to mind here.
[3] Let's elide non-state things which can do this with states for now, little turns on it in practice.
[4] Some might right 'powers' here to capture the Holy See and the Sovereign Military Order of Malta, again, I will elide them with states.
[5] The Latin maxim is pacta sunt servanda.
[6] I will use the terms agreement, pact, treaty, convention, protocol,  etc. pretty much interchangeably because for our purposes nothing turns on whatever limited distinctions exist between them. Amazing how much of this is just different words for the same things, really!
[7] Treaty Series No. 2 (2021) CP 385. All treaties once they come into force are presented to Parliament and numbered in the Treaty Series, so, e.g. the Treaty of Versailles was Treaty Series No. 4 (1919). This is done 'by Command of Her Majesty', hence they are also 'Command Papers'. These are numbered also in a series of series, the current one being the 'CP' series. Versailles was Cmd. 153.
[8] Sometimes 'municipal law' or 'internal law', cf. Article 27 of the Vienna Convention of the Law of Treaties which (attempts to) prohibit states from leaving treaties unimplemented in domestic law.
Article 27 
Internal law and observance of treaties 
A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. This rule is without prejudice to article 46.

(Treaty Series No. 58 (1980), Cmnd. 7964) 

[10] And any other requirements necessary for it to come into force have been met, e.g. a certain number of parties have ratified, or some period of time has elapsed. This is what paragraph (b) or Article 18 is envisaging.
[11] 2010 c. 25; this has on occaision been dispensed with by Act, e.g. by sec. 36 of the European Union (Future Relationship) Act 2020 (c. 29); and in one case enhanced by Act, cf. what was sec. 13 of the European Union (Withdrawal) Act 2018 (c. 16), although this provision was subsequently repealed, and the 2010 Act disapplied, by secs. 31 and 32 of the European Union (Withdrawal Agreement) Act 2020 (c. 1); there was also for a time a bespoke procedure for certain non-withdrawal related EU  treaties contained in sec. 2 of the European Union Act 2011 (c. 12).
[12] Similarly, American readers may be familiar with Article II section 2 of the US Constitution which provides that
He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur [...]
[13] This then begat the Country Series and the Miscellaneous Series of unratified treaties; prior to 2018 there was also a European Series for EU (and former EEC, etc) treaties. 
[14] Treaty Series No. 22 (2003) Cm. 5879.
[15] The presence of this list does not appear to be essential, e.g. the European Convention on Human Rights (Treaty Series No. 71 (1953), Cmd. 8969) refers to the High Contracting Parties but omits it, but as we shall see are still ratified by Her Majesty.
[16] On request, I have OCRed (and fixed, muchly) this and the other documents we will see. In the Annexe above is a PNG of the original image. Best of both worlds!
[17] This protocol does not seem to be in force yet, it was however published in the Miscellaneous Series No. 7 (2014) Cm. 8951.
[18] locus sigilli, here the Great Seal of the Realm is attached.
[19] They're not really lesser, they are no less binding and not really different, legally, at all.
[20] Except sometimes as a tool by states with awkward ratification requirements (the US....) to avoid something being a 'treaty' (as domestic law sees it).
[21] Not yet in force, published in the Miscellaneous Series as No. 025 (2019), CP 174.
[22] Really, they're not. Not at all. Not even an iota.
[23] Accession to the EU is a very extreme example of this, but even some anodyne commodities treaties have no automatic right of accession.
[24] Miscellaneous Series No. 1 (2017), Cm. 9411; not yet in force.
[25] Miscellaneous Series No. 6 (1956), Cmd. 9837; however, the UK only ratified this in 2017  (yes, really) and it doesn't seem to have meandered its way into the Treaty Series. This does provide an interesting demonstration of the difference between ratification and accession, though. The UK did sign the original convention back in 1956, but never signed the Second Protocol in 1999. So it had to ratify one and accede to the other!
[26] Treaty Series No. 56 (1949) Cmd. 7789
[27] Miscellaneous Series No. 20 (2019) CP 116; came into force in March 2020.
[28] At least from the perspective of the United Kingdom, I think this form of 'ratification' is not unique, just rarely used in UK diplomatic relations.
[29] E.g. Article 52 of the consolidated version of the Treaty on European Union.
[30] This is one of those things you don't spot until you're actually writing the blog itself
[32] There is in actuality no requirement for the depositary to be a party to the treaty at all, so this looks absurd but is inconsequential in practice.
 

Wednesday, 2 September 2020

Patents, Writs, and Lords who might not be Peers


In a previous blog, I excoriated all of you (and you know who you are!) who persist in the erroneous belief that Barons are addressed as Lord Firstname Surname. Now, that is out of the way, I think it might be fun to consider some of the more fun [1] bits of the Peerage.

We will start where I seem to always begin, with Letters Patent, then the unusual species of Barons known as Barons by Writ, then the curious incident that the Lords of Appeal in Ordinary might not, in truth, have been Peers. 

Letters Patent

These find form in the The Crown Office (Forms and Proclamations Rules) Order 1992 [2], which has since been amended a few times to take account of various constitutional changes. There are, naturally, five different forms, one for each degree of the Peerage. Helpfully, they are not all radically different, instead the Patent simply becomes more and more florid as one goes up the ranks [3]. So, the following is for Dukes, but after it the differences will be explained.

Elizabeth the Second by the Grace of God of the United Kingdom of Great Britain and Northern Ireland and Our other Realms and Territories Queen Head of the Commonwealth Defender of the Faith

To all Lords Spiritual and Temporal and all other Our Subjects whatsoever to whom these Presents shall come

Greeting

Know Ye that We of Our especial grace certain knowledge and mere motion do by these Presents advance create and prefer Our [Trusty and Well-Beloved Benjamin Lewis] to the state degree style dignity title and honour of Duke of [Croesyceiliog]

And for Us Our heirs and successors do appoint give and grant unto him the said name state degree style dignity title and honour of Duke of [Croesyceiliog] and by these Presents do dignify invest and ennoble him by girding him with a sword and putting a cap of honour and a coronet of hold on his head an by giving into his hand a rod of gold [4] to have and hold the said name state degree style dignity title and honour of Duke of [Croesyceiliog] unto him and the heirs male of his body lawfully begotten and to be begotten

Willing and by these Presents granting for Us Our heirs and successors that he and his heirs male aforesaid and every of them successively [5] may enjoy and use all the rights privileges pre-eminences immunities and advantages to the degree of a Duke duly and of right belonging which Dukes of Our United Kingdom [6] as they do at present use and enjoy

In Witness whereof We have caused these Our Letters to be made Patent

Witness Ourself at Westminster the [26th] day of [August] in the [Fifty-Ninth] Year of Our Reign
In general this is a fairly standard form for a Letters Patent on anything. I suppose the most obviously interesting paragraph is the one beginning "And for Us Our heirs", for it is this one which varies between the different degrees. Dukes and Marquesses get the full treatment: a metaphorical [7] sword, cap, coronet and golden rod [9]. Earls get almost the same, but no rod. Viscounts and Barons however get the much reduced
And for Us Our heirs and successors do appoint give and grant unto him the said name state degree style dignity title and honour of [Viscount Lewis] to have and to hold unto him and the heirs male of his body lawfully begotten and to be begotten
So far, these Letters Patent are in the standard form, which as you notice is always to heirs male lawfully begotten (Life Peers omit that bit naturally). But, while Her Majesty cannot change the descent of a Peerage once created [10], She can create a Peerage with different rules. These are called special remainders, and were in the past used to, for example, allow a title to descend to a brother or uncle of the first holder where he was childless or only had daughters.

For example, the Barony of Fairhaven was created in 1961 with the remainder [11]
and in default of such issue with remainder to his younger brother Henry Rogers Broughton (commonly called the Honourable Henry Rogers Broughton) and to the heirs male of his body lawfully begotten

The Prince of Wales got what looks like a remainder, though in truth I like many suspect that the Principality of Wales and the Earldom of Chester are actually a sui generis species of life peerage [12]

To hold to him and his heirs Kings of the United Kingdom of Great Britain and Ireland and of the British Dominions beyond the Seas for ever

(obviously modified to suit the current Royal Style). Some special remainders, that given to the Countess of Cromartie in 1861 being an extreme example, could be amazingly complicated and prolix, compared to these simple examples.

When life peers are introduced in the House of Lords, the Reading Clerk reads their Letters Patent aloud at the despatch box. Before 1999, only hereditary peers who were newly created were introduced (if they succeeded to the dignity Hansard just records "sat first after the death of his father" once they proved - if necessary - the descent) so none of the 92 representative peers will ever have theirs read by definition.

Baronies by Writ

Letters Patent were, before 1999, not the only way to create a Peerage. It was held by ancient custom that the mere receipt of a Writ of Summons (which all Peers got alongside their Patents normally) was sufficient provided the person summoned took up their seat. This was true even if the writ was issued as a result of the most egregious error. It is believed that, in actuality, this is the original method of creating baronial titles - that is they became hereditary not by some declaration of the Crown, but because the Crown invariably summoned the heirs of deceased barons to Parliament [13][14].

So, did this happen? Umm, yes. Examples include a farcical series of events surrounding the Baron Wharton: the barony, along with some other titles, should have been extinguished in 1729 when the holder was declared an outlaw. In 1844, the Committee of Privileges incorrectly decided that the barony was actually a barony by writ anyway (it wasn't, more on why this matters in a bit) and thus abyeant. That abeyance was then purportedly terminated in 1916, but in actuality an entirely new Wharton Barony was created by writ instead.

Equally, in 1722 the son of the Duke of Somerset was purportedly summoned to Parliament by Writ in Acceleration (see blog passim) in the name of Baron Percy. Except that the Percy barony was extinct, and had been since 1670. Consequently, since all peers sitting by Writ in Acceleration receive a Writ of Summons, a new barony was created - though of less importance than Wharton since Percy would eventually inherit Somerset anyway.

Even more amusingly, this was not the first time this very error had occurred! In 1628, the son of the then Earl of Derby was summoned by Writ in Acceleration in the name of Baron Strange. Now, the Strange barony that the Derbys purportedly held was claimed to be the second creation (of three, at the time), but this (being created in 1299) was abeyant [15][16]. Consequently, a new, fourth, Strange barony had in fact created. It and the Earldom subsequently parted company, and Lady Strange, as a Peeress suo iure was for a time a post-1999 representative peer.

Unlike the default state with Letters Patent, baronies by writ are inheritable by the heirs general lawfully begotten. Which is what creates the curious phenomenon of abeyance, since that formulation whilst permitting a sole daughter to inherit, instead causes multiple daughters to inherit as co-heirs. To me, given the inevitable complexities abeyance introduces, it is no surprise errors were made. Abeyance I will blog about more fully another day.

Were the Lords of Appeal in Ordinary Peers?

I am persuaded that the answer to this question is: no. By way of background, before the creation of the Supreme Court [17] the highest court in the United Kingdom [18] was the House of Lords (the High Court of the Queen in Parliament Assembled). To facilitate this [19], the Appellate Jurisdiction Act 1876 had enabled Her Majesty to appoint persons to the Lords for their lives (so not creating a steady stream of hereditary dignities) to staff the Appellate and Appeal Committees of the House which had been delegated its judicial functions. In particular, it provided that
For the purpose of aiding the House of Lords in the hearing and determination of appeals, Her Majesty may, at any time after the passing of this Act, by letters patent appoint two qualified persons to be Lords of Appeal in Ordinary [...] Every Lord of Appeal in Ordinary, unless he is otherwise entitled to sit as a member of the House of Lords, shall by virtue and according to the date of his appointment be entitled during his life to rank as a Baron by such style as Her Majesty may be pleased to appoint, [...]

(Initially, until 1887, it was provided that a Lord of Appeal in Ordinary would cease to be a member of the Lords on retirement too, which prompts some of the discussion we see in Hansard below). Italics are mine but also demonstrate the matter clearly. These were not peerages. If they were the section would have also declared that as well as ranking as a Baron they enjoyed the rights of Barons. In the Letters Patent we see something similar, viz.

Elizabeth the Second by the Grace of God of the United Kingdom of Great Britain and Northern Ireland and Our other Realms and Territories Queen Head of the Commonwealth Defender of the Faith

To whom these Presents shall come

Greeting

Whereas Our [Trusty and Well-Beloved Baroness Hale] has resigned her Office of a Lord of Appeal in Ordinary and the same is now vacant Now Know Ye that We of Our especial grace have in pursuance of the Appellate Jurisdiction Act 1876 as amended by subsequent enactments nominated and appointed and by these Presents Do nominate and appoint Our [Trusty and Well-Beloved Benjamin Lewis] to be a Lord of Appeal in Ordinary by the style of Baron Lewis to hold the said Office so long as he shall well behave himself therein subject to the provisions in the said Act mentioned with all wages profits privileges rank and precedence whatsoever to the said Office belonging or in anywise appertaining and to hold the said style of Baron unto him the said [Benjamin Lewis] during his life

In Witness whereof We have caused these Our Letters to be made Patent

Witness Ourself at Westminster the [26th] day of [August] in the [fifty-ninth] year of Our Reign

See in the italics how the privileges of the Office of Lord of Appeal in Ordinary (held quamdiu se bene gesserit) are separate from the style and rank as a Baron? In addition to this, one of the rights of a baron (pre-1999 anyway) was to sit in Parliament, so if the Lords of Appeal in Ordinary had all the rights of barons, they would necessarily have a seat for (at least) life in the House.

It is to me curious that while in the debates in the Lords on this bill [20] these new Lords of Appeal in Ordinary were referred to as "Peers", Disraeli was clear in the Commons that [21]
Besides this, we propose that there shall be two Lords of Appeal in Ordinary, chosen from the Bench or from the learned Bar, who shall be summoned to Parliament as Barons, who shall exercise their privileges as Barons while they hold these offices, and who when they have ceased to hold them will still possess the rank.

Which seems a choice of words much more in accord with the statutory scheme. Indeed, Sir William Harcourt (who appears to broadly have been opposed to keeping the House of Lords as the final court of appeal) also said [22]

What a farce it was, for it seemed that when one of them ceased to be a Judge he would cease to be a Peer in the ordinary sense of the word; and that suggested that in order to improve our Judicature we should be compelled to separate it from the hereditary Peerage

where the intentionally anomalous status of these "Peers" is made clear. Further, Sir George Bowyer  ( a Liberal so also an opponent) then went on to say [23]
The two persons who might be appointed as Lords Justices to assist the House of Lords would not be Peers, although they might be Lords of Parliament. They would be in a position analogous to that of the Bishops, who were not hereditary Peers. 
This curious confusion between terminology used in each House was commented on by Sir John Simon S.L. [24] in the Committee of the Whole House [25]
It had been said that these Lords of Appeal would be Lords of Parliament only and not Peers; but such high authorities as the Lord Chancellor, Lord Selborne, and Lord Hatherley had spoken of them as Peers. They had also been compared to the Scotch and Irish Peers, and even to the Bishops; but he contended that there was no analogy whatever between them.
The consideration in Committee was adjourned to take some Supply business and the House was later counted out. A month later, this thread being picked up again, Sir George reiterated his earlier point [26]
It was true they were to sit and vote, but they would not be Peers; their position would resemble that of the Bishops, who also were Lords of Parliament, not Peers. The hereditary character of the House of Lords was the real essence of the Peerage, and where there was not a hereditary right there was no Peerage. To show that the Bishops were not Peers, he would just state that if a Bishop were charged with felony, he would not, as a Peer would be under similar circumstances, be tried by the Court of the High Steward in the House of Lords, but by an ordinary jury, like any other commoner. These would not be "Peers made by statute," for the Act would simply empower the Queen to make a Lord of ​ Parliament, and if he resigned his office he would, like a Bishop who resigned, be no longer a Member of the House of Lords, and would no longer be summoned to sit there. There were Constitutional objections to the creation of life Peerages, as it would tend to degrade the House of Lords to the level of those miserable Senates which existed in Continental countries, and this was probably the reason why the Bill did not propose to make life Peers.
Which while he was no proponent of the Bill, to me accurately sets out the position: the Lords of Appeal were intentionally not Peers. And the reasons given appear to me to be cogent (for the time) too - it was desired to keep the Peerage, an hereditary dignity, separate from these life dignities.

Amusingly, the Attorney-General [27] later in the same debate made a, to modern eyes, prescient point [28]
It would be very dangerous to place in the hands of a Prime Minister the power of creating at any particular juncture of politics a number of life Peers under the disguise of appointing Assistant Lords of Appeal. 

I think these quotes from Hansard make it clear that, while in the upper house discussions were quite unclear (perhaps it was just obvious to them the difference between these quasi-Peers and the real ones?), in the Commons the matter was clear cut. The Lords of Appeal in Ordinary were not to be Peers. Though as we noted earlier, a decade later they were given a life membership of the House regardless.

Although several are still alive, no new Lords of Appeal in Ordinary can be created, so this will be an ever diminishing set of persons who rank as Barons, but are not, in actuality, Barons.

Of course, the new Justices of the Supreme Court might have the style of Lord Surname, but they do not even rank as Barons at all. 

Colophon

Did I ever mention how I love Letters Patent? I also can't remember who tipped me off about Lords of Appeal in Ordinary not being Peers, but thank you!

[1] Well, I find this fun, anyway.
[2] S.I. 1992 No. 1730; amended by S.I. 1996 No. 276 (changes to Commission Areas for Justices of the Peace); S.I. 2020 No. 3064 (more changes to Justices of Peace, but more importantly, the House of Lords Act 1999); and S.I. 2002 No. 3131 (to add "Great Women" to a part of the Writs of Summons for a Lord Spiritual)
[3] In truth, making this blog manageable, there are only three variations. The only differences between Dukes and Marquesses and between Viscounts and Barons being the form of the title itself. I have long wondered, partially inspired by this video of HRH the Duke of York taking his seat in the Lords (the last member of the Royal Family to do so, as it happens) if this is why the customary set of three is Duke-Earl-Baron, since there you see three Patents which actually differ a bit.
[4] For a Duchess suo iure this would read "to dignify invest and really ennoble her with such name state degree style dignity title and honour of Duchess of ...", with comparable forms for lower degrees.
[5] Before the 2000 amendments as a result of the House of Lords Act 1999, the phrase "may have hold and possess a seat place and voice in the Parliaments and Public Assemblies and Councils of Us Our heirs and successors within Our United Kingdom amongst the Dukes and also that he and his heirs male aforesaid successively" appeared here; it remains in the Patents of Life Peers.
[6] Ditto, "have heretofore used and enjoyed or"
[7] For the Prince of Wales they are very much real, and that idiotic [8] ceremony in the first season of The Crown where supposedly the Duke of Edinburgh was invested was basically just the Welsh ceremony mangled. Before Georgian times there was an actual ceremony, though, which did involve caps and coronets and so on.
[8] In my entirely not humble opinion, that scene is one of the singularly most egregious errors in the whole thing. Mostly because it was wrong and unnecessary at the same time. 
[9] Think sceptre. There will be more on coronets another day.
[10] Only an Act of Parliament can.
[11] The London Gazette, issue 42421, page 5506; but I am indebted to Sir David Beamish, the former Clerk of the Parliaments, who maintains a list of these (and many other things) on peerages.info
[12] Same list, curiously not actually mentioned in the Gazette.
[13] It was also held in 1621 by the House of Lords (in the case of the first Earl of Bristol) that the writ was a right of a Peer and the King could not deny it - only an Act of Parliament could.
[14] There is some subtlety to this, but this is the basic idea.
[15] It fell into abeyance in 1594 and remained so until 1921.
[16] The first and third creations were extinct. Interestingly the first, second, and third creations were all by writ too!
[17] By the Constitutional Reform Act 2005, effective 2009.
[18] Except Scottish criminal cases, because ... well just because.
[19] The Wenslydale peerage case is a topic for another day, before anyone mentions it.
[20] Lords Hansard, volume 227, columns 909-927; 1286-1292; 1944-1946.
[21] Commons Hansard, volume 229, column 1686 (the full speech spanning columns 1680-1693)
[22] ibid. column 1705
[23] ibid. column 1710
[24] S.L. means "Seargent at Law", a now obsolete rank of lawyer superior to the Queen's Council; consequently in Hansard Sir John is always listed as Mr. Seargent Simon
[25] Commons Hansard, volume 230, column 1163
[26] Commons Hansard, volume 231, columns 761-2
[27] At the time, Sir John Holker, QC. He had formerly been Solicitor-General.
[28] ibid. column 884